The Trust Doctrine in Federal Indian Law: A Look at its Development and at How Its Analysis Under Social Contract Theory Might Expand Its Scope JANICE AITKEN" I. INTRODUCTION The relationship between the United States and the American Indians is marked by extreme shifts in the policy of the federal government toward the Indian Nations, from the forcible removal of "hundreds of tribes ... from their ancestral lands" to "a commitment... to revive tribal govern- ments."' The history of that relationship developed out of a tension between the two doctrines that form the basis for the federal-tribal relationship: the "plenary" power over Indian affairs vested in the federal government by the United States Constitution2 and "special trust obliga- tions" which impose strict fiduciary standards on the federal government's dealings with Indians.3 The "trust doctrine" is rooted in Chief Justice Marshall's opinions in the "Cherokee Cases," Cherokee Nation v. Georgia4 and Worcester v. Georgia,5 where he described the relation of the Indian tribes to the United * B.A., Cleveland State University; M.A., Cleveland State University; J.D., Cleveland Marshall College of Law; Law Clerk to the Honorable Jack B. Streepy, Magistrate Judge in the Northern District of Ohio. 1. FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 49 (1982 ed.). 2. There are three explicit Constitutional references to Indians: the Indian Commerce Clause, which authorizes Congress to "regulate Commerce... with the Indian Tribes," U.S. CONST. art. I, § 8, cl. 3; the exclusion of "Indians not taxed" from population counts taken for the purpose of apportioning taxes and Congressional representatives, Id. art. I, § 2, cl. 3, amend. XIV, § 2. The Treaty Clause, art. II, § 2, cl. 2, which vests exclusive power to enter into treaties in the Federal Government, and the Property Clause, art. IV, § 3, cl. 2, which vests power "to dispose of and regulate 'the Territory or other Property belonging to the United States"' in Congress, along with art. I, § 8, cl. 18, the Necessary and Proper Clause, and art. VI, cl. 2, the Supremacy Clause, are additional sources of Federal authority over Indian affairs. COHEN, supra note 1, at 207-11. 3. COHEN, supra note 1, at 207. 4. 30 U.S. (5 Pet.) 1 (1831). 5. 31 U.S. (5 Pet.) 515 (1832). NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 18 States as resembling "that of a ward to his guardian." This doctrine has proved to be a two-edged sword. For more than five decades following the Cherokee Cases, issues regarding the scope and meaning of the trust doctrine remained dormant.7 Then, for a period of about forty years, beginning with United States v. Kagama8 and ending with United States v. Candelaria,9 the trust doctrine was treated as an additional, independent source of federal power over Indian affairs.' ° During this period, the trust relationship was used to expand the ability of the Federal Government to intrude into internal tribal affairs." Until recently, however, the trust relationship has not been effective as a limitation on federal power. Early attempts by Indians to seek equitable relief for breach of fiduciary duty on the part of the executive branch often met with dismissal on grounds of sovereign immunity. 2 The Court is now willing to find that the trust relationship imposes fiduciary duties on the actions of Executive agencies but remains hesitant to find the same duties imposed on Congressional action in Indian affairs. 3 While the Supreme Court appears to have acknowledged a "general trust relationship" between the Federal Government and the Indians in United States v. Mitchell,4 the Court based its finding of a fiduciary duty on a statutorily created compre- hensive timber management scheme. The Mitchell II Court also found an independent basis for the fiduciary duty "when the Government assumes such elaborate control over forests and property belonging to Indians."'" If the trust doctrine is to operate as an effective limitation on Federal power over internal tribal affairs, it must be able to reach Congressional as 6. COHEN, supra note 1, at 220. 7. Reid Peyton Chambers, JudicialEnforcement of the Federal Trust Responsibility to Indians, 27 STAN. L. REv. 1213, 1223 (1975). 8. 118 U.S. 375 (1886). 9. 271 U.S. 432 (1926). 10. COHEN, supra note 1, at 220. 11. See, e.g., Kagama, 118 U.S. at 283-84 (upholding, on the basis of the guardian- ward relationship, the Major Crimes Act, which extended Federal Jurisdiction to crimes committed by Indians against other Indians in Indian Country). 12. See, e.g., Naganab v. Hitchcock, 202 U.S. 473 (1906) (dismissinga Constitutional challenge to a statute authorizing the classification of land ceded to the United States by the Chippewas as forest land, on grounds that the classification would decrease the value of the land and thus reduce the size of the Chippewa's trust account and annual sales). 13. Mary Christina Wood, Indian Land and The Promise of Native Sovereignty: the Trust DoctrineRevisited, 1994 UTAH L. REv. 1471, 1513-14 (1994). 14. 463 U.S. 206 (1983) ("MitchelllI"). 15. Id. at 225, (quoted in Kimberly T. Ellwanger, Money DamagesFor Breach of the Federal-IndianRelationshipAfterMitchell II -United States v. Mitchell, 59 WASH L. REV. 675, 685 (1984)). 19971 FEDERAL INDIAN LA W & THE TRUST DOCTRINE well as Executive action. This will require a basis beyond a statutory scheme or assumption of control over a specific area of Indian activity. This article will explore the possibility of such a basis. In part I, I look at the development of the trust doctrine in case law. In part I, I look at how several commentators view the trust doctrine. In part IV, I will explore the possibility of developing a broader basis for the trust doctrine based on an application of social contract theory to the original understanding of the fe- deral-Indian relationship as documented by Chief Justice Marshall in the Cherokee Cases. I then discuss the implications of the resulting social con- tract paradigm of the trust doctrine and describe how it should be applied. H. THE DEVELOPMENT OF THE TRUST DOCTRINE Authors of legal opinions, treatises, and law review articles generally cite Cherokee Nation v. Georgia 6 and Worcester v. Georgia,17 commonly known as the "Cherokee Cases," as the source of the federal trust doctrine in Federal Indian Law.' In this section of the paper, I first set forth the reasoning of the Court in these foundational cases. I then discuss the evolution of the trust doctrine in subsequent Supreme Court cases. Finally, I discuss how various commentators view the trust doctrine. A. THE ACCEPTED FOUNDATION OF THE TRUST DOCTRINE: CHEROKEE NATION AND WORCESTER In Cherokee Nation, the Cherokees, identifying themselves as a "foreign state, not owing allegiance to the United States, nor to any state of this union, nor to any prince, potentate or state, other than their own," sought an injunction against the enforcement of a Georgia state statute annexing land that came within the boundaries of the Cherokee Nation's territory as established by federal treaty, extending the laws of Georgia over Cherokee land, and abolishing the laws of the Cherokee Nation." The Cherokee Nation Court denied the Cherokees' request on the ground that the Court lacked jurisdiction to hear the case, because the Cherokee Nation, not being a foreign nation, lacked standing to bring the cause of action.20 16. 30 U.S. (5 Pet.) 1 (1831). 17. 31 U.S. (6 Pet.) 515 (1832). 18. See, e.g., Choctaw Nation v. United States, 397 U.S. 620 (1970); FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 220 (2d. ed., 1932); Gail M. Lambert, Indian Breach of Trust Suits: PartialJustice in the Court of the Conqueror, 33 RUT. L. REv. 502, 504 (1981). 19. 30 U.S. at 3, 7. 20. Id. at 17. Justice Marshall undertook this inquiry into the status of the Cherokee Nation because, under Article III of the United States Constitution, which enumerates the NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 18 Justice Marshall, finding that the Cherokee Nation was more properly described as a "domestic dependant nation" in a "state of pupilage" whose relationship with the United States resembled that of a "ward to his guardian," went on to note that the tribes "look to our government for protection; appeal to it for relief to their wants; and address the president as their great father."'" This language, with its emphasis on the dependant status of the Cherokees, is supportive of the power side of the trust equation: power born of paternalism. It developed into the plenary power doctrine about half a century later in Lone Wolfv. Hitchcock.22 Worcester did not share Cherokee Nation's jurisdictional defect. The plaintiff in error in Worcester was a white missionary who had been indicted and convicted in the supreme court for the county of Gwinnett in the state of Georgia" under a Georgia statute prohibiting whites from "residing within the limits of the Cherokee Nation without a license."24 As cases over which the Court has jurisdiction, the Court may hear only cases involving controversies "between a state or the citizens thereof and foreign states, citizens or subjects." Id. at 15. The Cherokee Nation had argued that, as individuals, the Cherokees were aliens who owed no allegiance to the United States and that a state composed of aliens must be a foreign state. Id. at 16. Marshall felt that this argument could not be taken at face value because of the unique relationship between the Indians and the United States. Id. Marshall's analysis of whether the Cherokee